RONNIE WILLIAMS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Court affirmed conviction but struck the trial court's improper retention of jurisdiction over consecutive sentences, remanding for correction of the sentencing order.
A trial court's retention of jurisdiction over a portion of consecutive sentences is improper and must be stricken, though the conviction and sentences themselves remain valid.
[1] A trial court's improper retention of jurisdiction over a portion of consecutive sentences may be stricken without vacating the underlying judgment and sentences.
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Join FLexlaw to unlock all legal intelligenceWilliams was convicted by jury of robbery with a deadly weapon and aggravated assault, sentenced to 90 years and 15 years respectively to run consecut…
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BARKDULL, Judge.
This appeal is from a summary denial of appellant’s motion to vacate, filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. The appellant was found guilty by a jury of robbery with a deadly weapon and aggravated assault. He was sentenced to ninety years and fifteen years respectively to run consecutively with the trial court retaining jurisdiction over one-third of each of the sentences. Appeal from the final judgment of convictions and sentences resulted in affirmance. Post conviction motions alleging ineffectiveness of appellate counsel were denied. By this further petition the defendant challenges (1) the sufficiency of the evidence to sustain the conviction; (2) propriety of the retention of jurisdiction over both consecutive sentences; and (3) the judgment and sentence for robbery with a deadly weapon was excessive where there was no proof a deadly weapon was used in commission of the crime.
Points 1 and 3 could have been raised on direct appeal and therefore the defendant is not entitled to relief. See Palmes v. State, 425 So. 2d 4 (Fla.1983); Thompson v. State, 410 So. 2d 500 (Fla.1982). Point 2 also could have been raised on direct appeal and should not entitle the defendant to relief. However, because the improper retention of jurisdiction is a part of the sentence it should be stricken. In so doing it will not be necessary to vacate the judgment and sentences. See Adams v. State, 435 So. 2d 953 (Fla. 2d DCA 1983). This matter is returned to the trial court for further proceedings.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Percival M. Marshall v. Dugger, 526 So. 2d 143 (Fla. 3d DCA 1988)…that this court grant the petition for writ of habeas corpus filed herein. However, as Points 2 and 5 go to the legality of the sentences imposed and in the interests of justice, we shall dispose of those issues at this time. See Williams v. State, 473 So. 2d 11 (Fla. 3d DCA 1985); Kohn v. State, 289 So. 2d 48 (Fla. 3d DCA 1974). As to the stacking of the 3 year minimum sentences, we find that under the facts of this case, Palmer v. State, 438 So. 2d 1 (Fla.1983) is controlling, and we therefore find that…
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Mullings v. State, 553 So. 2d 287 (Fla. 3d DCA 1989)…gler v. State, 452 So. 2d 537 (Fla.1984); Brown v. State, 430 So. 2d 446 (Fla.1983); Ford v. State, 407 So. 2d 907 (Fla.1981); Ponder v. State, 530 So. 2d 1057 (Fla. 1st DCA 1988); Paez v. State, 512 So. 2d 263 (Fla. 3d DCA 1987); Williams v. State, 473 So. 2d 11 (Fla. 3d DCA 1985).…
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Thomas v. State, 611 So. 2d 1324 (Fla. 3d DCA 1993)…409 So. 2d 1031, 1038 (Fla.1982); Marshall v. State, 448 So. 2d 603 (Fla. 3d DCA 1984). However, this court has also held that the absence of such findings is a matter which can be raised by motion for post-conviction relief. See Williams v. State, 473 So. 2d 11 (Fla. 3d DCA 1985); Williams v. State, 435 So. 2d 882 (Fla. 3d DCA 1983). That being so, defendant was not barred from raising the point in his Rule 3.850 motion. Third, turning to the merits of de- ■ fendant’s claim, see Marshall v. Dugger, [*1327…
Authorities Cited
- Thompson v. State, 410 So. 2d 500 (Fla. 1982)
- Palmes v. State, 425 So. 2d 4 (Fla. 1983)
- Adams v. State, 435 So. 2d 953 (Fla. 2d DCA 1983)